Can af­ter-hours ac­tivism get you in trou­ble at work?

Los Angeles Times - - WORK LIFE - By Jena McGre­gor McGre­gor writes a col­umn on lead­er­ship in the news for the Wash­ing­ton Post.

In re­cent weeks, the story of a New Jersey lawyer whose off-hours po­lit­i­cal ac­tivism was brought to the at­ten­tion of her em­ployer went vi­ral be­cause of the un­usual way it hap­pened: A con­gress­man’s let­ter flagged her as a “ring­leader” of a group aimed at mak­ing him more ac­count­able and ac­ces­si­ble. In a fundrais­ing let­ter sent to a board mem­ber of the bank for which Saily Ave­lenda worked, Rep. Rod­ney Frel­inghuy­sen (R-N.J.) at­tached an ar­ti­cle that quoted her, warn­ing in a hand­writ­ten post­script that she worked in his bank.

But the story also raises ques­tions about what rights em­ploy­ees have when it comes to off-duty po­lit­i­cal ac­tiv­ity, par­tic­u­larly in an era of ris­ing po­lit­i­cal en­gage­ment, grow­ing hy­per-po­lar­iza­tion and in­creas­ing use of so­cial-me­dia plat­forms such as Twit­ter or LinkedIn that eas­ily con­nect work­ers with their em­ploy­ers. Though Ave­lenda was not dis­ci­plined, her boss asked her to write a state­ment about her ac­tiv­i­ties with the group, and she later re­signed, in part be­cause of the pres­sure she felt from the episode.

“I was not us­ing my em­ployer’s name any­where,” Ave­lenda said, not­ing she was care­ful to not even use pens with a com­pany logo while she was work­ing with the group. The bank, where she was an as­sis­tant gen­eral coun­sel, was also not named in me­dia re­ports.

“I was stunned why I had to do any­thing.” (In a Face­book post, Lake­land Bank said it “does not com­ment on the sta­tus of our cur­rent or for­mer em­ploy­ees” and that its code of ethics al­lows each em­ployee “the op­por­tu­nity to sup­port com­mu­nity ac­tiv­i­ties or the po­lit­i­cal process in the man­ner that she or he de­sires.”)

The rights em­ploy­ees hold de­pend greatly on the state — or even the city or county — where they live. Some states specif­i­cally bar com­pa­nies from fir­ing or dis­ci­plin­ing em­ploy­ees for law­ful off-hours con­duct, or pro­tect cer­tain po­lit­i­cal ac­tiv­i­ties. Oth­ers don’t have those pro­tec­tions: For in­stance, New Jersey, where Ave­lenda lived, is not among the states that pro­tect em­ploy­ees for their off-duty po­lit­i­cal ac­tiv­ity, said De­bra Katz, a Wash­ing­ton lawyer who rep­re­sents em­ploy­ees in dis­crim­i­na­tion suits.

There is also no fed­eral law that ex­plic­itly pro­tects pri­vate-sec­tor em­ploy­ees for off-duty po­lit­i­cal ac­tivism, though the Na­tional La­bor Re­la­tions Act gives pro­tec­tion for union-re­lated po­lit­i­cal ac­tiv­ity, Katz says.

“Right now it’s so hotly po­lar­ized, and so­cial me­dia is cre­at­ing trails of ev­ery­thing ev­ery­body does,” Katz said. “I think peo­ple would be aghast to know that those rights are not guar­an­teed in most states.”

The 1st Amend­ment re­stricts the govern­ment from dis­crim­i­nat­ing against pub­lic em­ploy­ees for po­lit­i­cal speech, and peo­ple gen­er­ally from state cen­sor­ship or puni­tive ac­tion by the state.

“But if it’s a pri­vate em­ployer, there’s no par­tic­u­lar free­dom of speech,” said Lind­say Burke, vice chair of the em­ploy­ment law prac­tice at the firm Cov­ing­ton & Burl­ing.

Eu­gene Volokh, a UCLA law pro­fes­sor and free speech ex­pert who also writes as a con­trib­u­tor for the Wash­ing­ton Post, says it’s “fair to say there are about a dozen states in which there is con­sid­er­able pro­tec­tion for em­ploy­ees, at least off-duty, and maybe some­times on duty, for po­lit­i­cal and ide­o­log­i­cal ex­pres­sion and ac­tivism.”

States in­clud­ing North Dakota, Colorado, New York and Cal­i­for­nia have rel­a­tively broad pro­hi­bi­tions against tak­ing ac­tion against an em­ployee who takes part in law­ful off-duty po­lit­i­cal ac­tiv­ity, but there are still dif­fer­ences, and ex­cep­tions for things re­lated to busi­ness in­ter­ests or job du­ties, such as jour­nal­ists be­ing pro­hib­ited from vol­un­teer­ing for po­lit­i­cal cam­paigns or tak­ing part in po­lit­i­cal marches.

An­other roughly dozen states pro­tect cer­tain kinds of ac­tiv­ity re­lated to the elec­toral process, Volokh says, such as sign­ing a pe­ti­tion or mak­ing con­tri­bu­tions to a po­lit­i­cal cam­paign, but these are nar­rower pro­tec­tions.

States, he notes, are ask­ing whether po­lit­i­cal ac­tiv­ity should be treated “as things like ap­pear­ance, or what col­lege you went to, where ba­si­cally we leave it to the em­ploy­ers’ good sense in the mar­ket­place to prevent dis­crim­i­na­tion, or do we treat it like race and re­li­gion and sex, [where] you can’t dis­crim­i­nate on that even when you might have good busi­ness rea­sons,” he said.

Even where there are pro­tec­tions spelled out for work­ers, there is not al­ways a lot of case law that helps de­fine the am­bigu­ous terms used in many states, such as what is meant by “po­lit­i­cal ac­tiv­ity.”

One rea­son there may not be many cases, Volokh says, could be that many em­ploy­ers sim­ply “take a live­and-let-live at­ti­tude to­ward em­ploy­ees’ pol­i­tics.” Just be­cause some states lack pro­tec­tion doesn’t mean many em­ploy­ers are nec­es­sar­ily act­ing on it.

Katz says lawyers she knows who rep­re­sent man­age­ment “feel they have to tread very care­fully on mon­i­tor­ing so­cial me­dia,” tak­ing ac­tion only when peo­ple are do­ing things like vi­o­lat­ing trade se­crets, con­fi­den­tial­ity or ac­tively dis­parag­ing their em­ployer.

Paula Brant­ner, a se­nior ad­vi­sor to Work­place Fair­ness, a non­profit fo­cused on em­ployee rights, says she has typ­i­cally seen only one or two of these kinds of cases stand out each elec­tion cy­cle, though she ex­pects that we could hear about them more of­ten in the fu­ture.

“A lot of peo­ple who haven’t been ac­tive be­fore are newly en­er­gized and there are a lot of groups form­ing around the coun­try,” she said. Plus, “with so­cial me­dia, one’s per­sonal views get am­pli­fied far more than they were in the past.”

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